OSHA has been flooded recently with a surge of employee whistleblower complaints regarding COVID-19 as cases surge across the country. This is just one indicator of how the agency will be responding to employee concerns about the rising tide of COVID-19 cases and how they impact workplace safety. We will examine enforcement trends based on employee complaints and actual inspection data.
We will examine how OSHA has updated its guidance and recommendations for addressing the uptick in COVID cases, including under its new Emergency Temporary Standard applicable to healthcare. Under the new guidance, employers are having to be formal in how they approach COVID-19, including through having a designated workplace coordinator who is responsible for COVID-19 issues on the employer’s behalf. New compliance hurdles include how employees are to be involved, the communication of COVID issues, and new workplace safety controls.
We will also explore how OSHA enforcement impacts civil litigation and other claims against employers.
AREAS COVERED IN THE SESSION
As of August 8, 2021, the Occupational Safety and Health Administration (OSHA) has received more than 5,558 whistleblower complaints related to COVID-19 since the start of the pandemic (and State Plans have received an additional 2,118 complaints). This surge in cases indicates that COVID-19 will once again dominate the agency. To be sure, when President Biden took office he signed an Executive Order that put in month several enforcement priorities for the agency. To that end, on March 12, 2021, OSHA issued a new national emphasis program (NEP) “targeting specific high-hazard industries or activities” where the hazard of contracting the virus that causes COVID-19 is prevalent. The NEP also aims to protect workers from retaliation.
This new COVID-19 NEP will require OSHA Area Offices to conduct planned/programmed and follow-up inspections in workplaces where employees have a high frequency of close contact exposures as to be at greater risk to COVID-19. We will examine this program in relation to the surge of COVID cases. On July 7, 2021, OSHA issued a revised NEP with the following key changes:
- OSHA removed several industries from the list of industries that are targeted under the NEP. While OSHA will still target the industries that are listed in Appendix A to the NEP (which include various health care industries, meat and poultry processing, certain retail settings, restaurants, warehousing and storage, postal service, and correctional institutions), OSHA has removed from the revised NEP those secondary target industries within the former Appendix B, which were from other critical infrastructure sectors that, at the height of the pandemic, were considered to have elevated risks of exposure.
- The Revised COVID-19 NEP now incorporates the COVID-19 ETS, which was published and became effective on June 21, 2021.
- The Revised NEP now directs inspectors to follow the COVID-19 ETS Inspection Procedures when conducting inspections in healthcare settings and the July 2021 IERP when conducting inspections in non-healthcare settings.
We will generally review all enforcement data, as well. On July 7, OSHA also updated its COVID inspection procedures. Highlights include:
- A focus on protections for workers who are unvaccinated or not fully vaccinated. OSHA recommends implementing multiple layers of controls to limit potential exposures to workers who are not fully vaccinated or who are unvaccinated. For example, employers should implement, or continue to implement, physical distancing, maintain ventilation systems, and ensure that workers use face coverings or PPE when appropriate.
- Reduced enforcement discretion for noncompliance with Respiratory Protection standard. Earlier in the COVID-19 pandemic when employers faced shortages of respirator supplies and services, OSHA issued temporary enforcement discretion policies for the Respiratory Protection standard. The July 2021 IERP acknowledges that these circumstances have changed and indicates that, where respirator supplies and services are readily available, OSHA will cease to exercise enforcement discretion for temporary noncompliance with the Respiratory Protection standard. Where healthcare-associated industries still face a respirator equipment shortage, OSHA will address non-compliance on a case-by-case basis.
- Rescinding of previous temporary enforcement discretion memoranda. Due to the changing circumstances, OSHA will no longer exercise enforcement discretion of requirements in other health standards and is rescinding its previous temporary enforcement discretion memoranda.
- Updated instructions and guidance for OSHA area offices and inspectors for handling COVID-19-related complaints, referrals, and severe illness reports. In light of the recognition that workers who are unvaccinated or not fully vaccinated are at a higher risk of infection, the instructions and guidance for inspectors and area offices now instruct inspectors to verify the existence and effectiveness of procedures for determining vaccination status and to determine whether the employer has implemented measures for unvaccinated or not fully vaccinated workers. When citing employers under the General Duty Clause, inspectors and Area Offices are expected to provide findings that workers who are unvaccinated or not fully vaccinated were exposed to a recognized COVID-19-related hazard.
- Ensuring workers are protected from retaliation. Like the Revised COVID-19 NEP, the July 2021 IERP reminds inspectors that workers fearing consequences for requesting inspections, complaining of exposure to COVID-19, or reporting illnesses may be covered under one or more whistleblower statutes and directs inspectors to inform workers of their protections from retaliation. If the worker alleges retaliation, the Area Officer must submit a referral to the Regional Whistleblower Protection Program.
- Finally, we will review updates to OSHA’s guidance in relation to rising COVID cases.